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Moll v. Stinson

United States District Court, W.D. Missouri, Western Division

October 18, 2019

HEATHER MOLL, Plaintiff,
v.
GLEN A. STINSON and MARLENA STINSON, individually, and d/b/a STINSON PROPERTIES, 5528-5530 HOMER WHITE, LLC, IDEALINE MARKETING AND PRODUCTS, INC. d/b/a CALIBRATION BREWERY, CALIBRATION BREWERY COMPANY, CALIBRATION 119 BREWERY, CALIBRATION BREW HUB, Defendants.

          ORDER

          NANETTE K. LAUGHREY UNITED STATES DISTRICT JUDGE.

         Pending before the Court are Plaintiff's motion for entry of default, Doc. 11, Plaintiff's motion to strike the Answers of Defendants Glen A. Stinson, Marlena Stinson, 5528-5530 Homer White, LLC, Idealine Marketing and Products, Inc., Calibration Brewery Company, Calibration 119 Brewery, and Calibration Brew Hub, Doc. 20, and Defendants' motion for leave to file Answers to Complaint out of time, Doc. 21. For the following reasons, Plaintiff's motion for entry of default judgment and motion to strike Defendants' Answers are denied, and Defendants' motion for leave to file Answers out of time is granted.

         I. Background

         On July 17, 2019, Plaintiff Heather Moll filed this action against Defendants Glen A. Stinson, Marlena Stinson, 5528-5530 Homer White, LLC, Idealine Marketing and Products, Inc., Calibration Brewery Company, Calibration 119 Brewery, and Calibration Brew Hub, alleging violations of Title VII of the Civil Rights Act of 1964, the Missouri Human Rights Act, the Fair Housing Act, the Fair Labor Standards Act of 1938, and Missouri labor law § 290.500, et seq. The Complaint states that as an employee and a tenant of Defendants, Moll experienced gender discrimination, sexual harassment, denial of minimum wage and overtime wages, unlawful termination, uninhabitable housing, and unlawful eviction. Doc. 1 (Complaint), ¶¶ 45-84.

         Defendant Marlena Stinson was properly served on July 31, 2019, and all other Defendants were properly served on August 1, 2019. On August 15, an attorney who had previously been retained by Defendants requested the current defense counsel to assist with filing a single Answer to Moll's Complaint for all seven Defendants, because he did not have access to the electronic case filing system. The first attorney incorrectly informed current counsel that the Answers were due in ten days. At that time, current defense counsel was out of the country, and he informed the attorney he would be unable to assist until his return on August 21. Defendants failed to file their Answers by the August 21 and 22 deadlines pursuant to Federal Rule of Civil Procedure 12(a)(1)(A).

         On August 23, the Court Clerk informed current defense counsel that it would be improper for him to file another attorney's Answer with the Court, and that the true deadlines for filing Defendants' Answers had already passed. Current defense counsel then immediately contacted Moll's counsel seeking consent for an extension. On August 27, Moll's counsel informed defense counsel she could not consent to any extension of time and that same day filed her motion for entry of default. Doc. 11. Over the next seven days, current defense counsel met with Defendants to prepare seven individual Answers, which were filed on September 4 without counsel's seeking leave from the Court. On September 6, Moll filed a motion to strike Defendants' Answers on the grounds that they failed to seek leave of court to file Answers out of time or provide a sufficient justification. Doc. 20. That same day, Defendants responded by filing a motion for leave to file Answers out of time. Doc. 21. Defense counsel states that he was unable to file a motion for leave to file out of time along with the Answers, because he was ill and unable to come into his office to notarize the affidavit that he intended to attach to his motion for leave to file Answers out of time.

         II. Discussion

         a. Motion for Entry of Default

         Moll moves for entry of default pursuant to Federal Rule of Civil Procedure 55(a). Moll initially moved for entry of default prior to Defendants' filing their Answers, but in her reply brief, she maintains that she is entitled to entry of default despite the belatedly-filed answers because Defendants did not do all they reasonably could to comply with the pleading deadlines and have failed to show they are entitled to an extension of those deadlines. Moll contends that their behavior constitutes willful delay that justifies an entry of default.

         Federal Rule of Civil Procedure 55 permits a party to seek default judgement against a Defendant who has failed to plead or otherwise defend in an action against him. Fed.R.Civ.P. 55(a). Generally disfavored, entry of default judgment is appropriate when a party's conduct exhibits “willful violations of court rules, contumacious conduct, or intentional delays.” Ackra Direct Marketing Corp. v. Fingerhut Corp., 86 F.3d 852, 856 (8th Cir. 1996) (internal quotation and citation omitted). “[D]efault judgment is not an appropriate sanction for a marginal failure to comply with time requirements.” Id. (internal quotation omitted). “[T]here is a strong policy in favor of deciding a case on its merits, and against depriving a party of his day in court.” Chrysler Corp. v. Carey, 186 F.3d 1016, 1020 (8th Cir. 1999). The decision is left to the “sound discretion” of the Court. F.T.C. v. Packers Brand Meats, Inc., 562 F.2d 9, 10 (8th Cir. 1977).

         Defendants delayed filing their Answers by fourteen days. This delay does not appear to have been a willful violation of a court rule or the product of an intent to delay the proceeding. Rather, it was the result of a miscommunication between counsel as well as the new defense counsel's need to become familiar with the case. Prior defense counsel claimed he did not have access to the electronic filing system, and once the newly hired defense counsel learned of the lapsed deadline, he made reasonable efforts to write and file the required Answers for all seven Defendants. This is a “marginal failure to comply with time requirements, ” not the type of contumacious or intentional conduct that would warrant a default judgment. See, e.g., Comiskey v. JFTJ Corp., 989 F.2d 1007, 1009 (8th Cir. 1993) (default judgment appropriate in light of Defendant's “total failure to comply with numerous court orders and with [Plaintiff's] discovery requests”); Hall v. T.J. Cinnamon's, Inc., 121 F.3d 434, 435 (8th Cir. 1997) (default judgment warranted where Defendant “watched the litigation from afar for over seven months, apparently without any intention of entering an appearance or defending the action”).

         While the Court does not condone Defendants' delay and subsequent filing without first seeking leave from the Court, given the judicial preference for adjudication on the merits, entering default under these circumstances would be “disproportionate to [Defendants'] transgression.” Mann v. Lewis, 108 F.3d 145, 147 (8th Cir. 1997) (finding that dismissal with prejudice in response to Plaintiff counsel's repeated failures to comply with court orders would be a disproportionate response). See also Johnson v. Dayton Elec. Mfg. Co., 140 F.3d 781, 784- 85 (8th Cir. 1998) (stating that while the court did “not approve of this sort of cavalier approach to litigation, ” it would nonetheless reverse a finding of default where “poor communication” resulted in delay that was “careless….[b]ut it was not contumacious, it did not exhibit an intentional flouting or disregard of the court and its procedures, and it only briefly delayed the litigation”); Kocenko v. Buskirk, 56 F.R.D. 14, 16 (E.D. Pa. 1972) (finding that while “the Court can in no way condone the inordinate [ten month] delay which has attended the defendant's filing of an answer in this action, we nevertheless are guided by the conscience of the Court to seek disposition of cases on the merits”). By filing Answers and a motion for leave to file Answer out of time, albeit belatedly, Defendants have demonstrated an intent to defend. Therefore, Moll's motion for entry of default is denied.

         b. Motion for Leave to File Answers Out of Time and Motion to Strike Defendants' Answers[1]

         Defendants concede that they failed to file within the time required by Federal Rule of Civil Procedure 12(a)(1)(A)(i). However, they assert that they should be given leave to file their Answers out of time because the miscommunication between and transition in defense counsel constitutes excusable neglect. Defendants acknowledge that perhaps they should have waited to file the Answers until they had filed their motion for leave to file Answers out of time, but they argue that they were merely attempting to “demonstrate the eagerness of Defendants to participate fully in this case.” Doc. 33 (Defendants' Response to Plaintiff's Motion to Strike), ¶ 13. In opposition, Moll ...


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